Congress has defunded AFFH

The omnibus bill Congress passed and President Trump signed last week is a disaster. However, one positive thing to come out of it, in addition of course to the increase in military spending, was the defunding of President Obama’s Affirmatively Furthering Fair Housing regulation (AFFH). This is a move we’ve been advocating for some time. Finally, the Republican Congress pulled the trigger.

AFFH enables the Department of Housing and Urban Development (HUD) to order more than 1,200 cities and counties that accepted any part of annual community development block grants to rezone neighborhoods along income and racial criteria. I have written frequently about this rule — e.g., here and here.

The omnibus provides:

None of the funds made available by this Act may be used by the Department of Housing and Urban Development to direct a grantee to undertake specific changes to existing zoning laws as part of carrying out the final rule entitled ‘Affirmatively Furthering Fair Housing’ … or the notice entitled ‘Affirmatively Furthering Fair Housing Assessment Tool’. . .

There’s somewhat less to this than meets the eye. HUD Secretary Ben Carson has already delayed AFFH until 2020. So even without the omnibus, HUD would not be using funds to promote AFFH this year or next. But as long as the regulation remains on the books, it might spring back into play after 2020.

Here’s what really needs to happen: Ben Carson needs to rescind AFFH. He has been reluctant to do so. Now that Congress has defunded the program, maybe he will take his cue and kill this federal hijacking of local governments.

Robert Romano of Americans for Limited Government argues that the AFFH defund facilitates this move. He explains:

Without Congress acting, simply rescinding this regulation would have been far riskier for Carson and Trump.

In 1983, the Supreme Court decided [in] Motor Vehicle Manufacturers Association v. State Farm Mutual that [when] rescinding any regulation issued, an agency is obligated to supply a reasoned analysis “for the change beyond that which may be required when an agency does not act in the first instance.”

The outcome was that it is much more difficult to rescind an existing regulation than it is to either modify it or never have issued it in the first place, leaving every single regulatory rescission subject to judicial review.

Ultimately, the rescinding agency has to argue not only that rescinding the regulation in question is rational based on the statutory scheme, but prove that enacting it was irrational to begin with.

Carson and Trump will now have no problems on that count if they choose to rescind or roll back most of the HUD zoning regulation. The regulation, which absolutely affects zoning, no longer rationally rests within the statutory scheme. It’s now illegal to spend money on implementing it as it was written.

However:

Realistically, that will remain true [only] so long as Congress keeps carrying forward the defund language in every single omnibus spending bill going forward. Republicans will have to fight to defund this provision every year so long as the regulation remains in place.

Should Democrats win the midterm elections in November, they might seek to strip this language out of next year’s HUD appropriations bill. To avert this possibility, Carson must begin the regulatory rescission process immediately. There is not a moment to lose. . . .

Congress has done its job. Now it is up to the Trump administration with Carson in the lead to rescind this regulation with the window of opportunity Congress has given, so that no administration ever again attempts to take over local governments across the country.

(Emphasis added)

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